Kissock v. Butte Convalescent Center

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No. 98-555

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 322

297 Mont. 307

992 P.2d 1271

BETTY H. KISSOCK,

Plaintiff and Appellant,

v.

BUTTE CONVALESCENT CENTER,

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Butte-Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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Wade J. Dahood, Michael D. McLean, Knight, Dahood, McLean & Everett, Anaconda,
Montana

For Respondent:

Gary L. Walton, Lee Bruner, Poore, Roth & Robinson, Butte, Montana

Submitted on Briefs: July 1, 1999

Decided: December 22, 1999

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

1. ¶On December 25, 1994, Betty H. Kissock (Kissock) suffered a slip and fall
accident in the parking lot of the Butte Convalescent Center (BCC) and sustained
injuries to her right shoulder. Kissock filed a Complaint and Demand for Jury Trial
in the Second Judicial District Court, Silver Bow County, alleging that BCC had
failed to exercise ordinary care in maintaining its parking area and seeking damages
from BCC for her injuries. BCC subsequently filed several Motions in Limine
seeking to exclude certain evidence from trial, all of which were granted by the
District Court. Ultimately, the jury returned a verdict in favor of BCC. Kissock then
filed a Motion for Judgment Notwithstanding the Verdict, challenging the court's
prior evidentiary rulings, which was denied by the District Court. Kissock now
appeals to this Court. We reverse and remand for a new trial.
2. ¶The dispositive issue on appeal is whether the District Court abused its discretion
in ruling that a similar accident on BCC's premises that occurred a few days prior to
Kissock's fall was too remote in both time and location to be relevant and admissible

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at trial.

Factual and Procedural Background

1. ¶During the first two weeks of December of 1994, Butte experienced a series of
snowstorms. The last of these storms occurred on December 19, 1994, and was
followed by a warming trend which resulted in snow and ice melting during the day
and freezing at night. This pattern of freezing and thawing continued for several
days.
2. ¶On December 25, 1994, Kissock and her daughter drove to the BCC facility to
spend some time with Mr. Kissock who was a patient. BCC knew that Christmas
Day would be the busiest visitor day of the year. Upon arriving around 4:30 p.m.,
Kissock parked her vehicle in the parking area near the front entrance of BCC. She
opened the door to her car, stepped out, and suffered a traumatic fall on some black
ice on the parking lot's surface. Kissock's body struck the pavement, injuring her
right shoulder.
3. ¶Kissock's daughter rushed into BCC to summon aid. Two nurses inside BCC
grabbed a bucket of sand and a gurney, then left to help Kissock. Kissock's daughter
was of the opinion that the parking lot was so slippery that it would have been
impossible to rescue her mother unless the area was sanded. Some other staff
members of BCC also came outside and, with their assistance, Kissock was brought
into the facility. After Kissock's fall, BCC staff re-sanded the parking lot.
4. ¶Because Kissock was suffering from tremendous pain, she was taken to the St.
James Community Hospital's Emergency Room. She underwent an examination and
x-rays, was given some pain pills, and then discharged home. Approximately one
month after the accident, Kissock was diagnosed with a complete rupture of the
rotator cuff of her right shoulder. Subsequently, Kissock underwent two operations
in an attempt to alleviate her pain. Even after these surgeries, the condition of
Kissock's shoulder has prevented her from leading a normal life.
5. ¶At approximately 11:00 a.m. on December 21, 1994, Judy O'Boyle (O'Boyle), a
certified nurse's aid who worked for BCC, slipped and fell on the sidewalk outside
the BCC facility. Before trial, BCC requested that the District Court grant a motion
in limine "prohibiting [Kissock], her witnesses, attorneys or anyone acting on her
behalf from mentioning, suggesting or in any way conveying to the jury in this case
that Judy O'Boyle fell several days prior to the incident involving [Kissock]."
6. ¶The District Court granted BCC's motion in limine, relying on the "remoteness
rule" to exclude evidence of O'Boyle's fall at trial. The court reasoned:

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The remoteness rule excludes evidence when because of distance in time or space its
probative value is outweighed by its prejudicial effect. Judy O'Boyle's fall would have to
have occurred under the same or similar conditions to be relevant. . . . [Kissock] gave no
indication that it happened even near to the same time of day as [Kissock's] fall. The Court
finds it too prejudicial to the issue of [Kissock's] slip and fall.

Discussion

1. ¶Did the District Court abuse its discretion in ruling that O'Boyle's prior slip and fall
accident was too remote in both time and location to be relevant and admissible at
trial?
2. ¶A district court has broad discretion to determine whether or not evidence is
relevant and admissible. Simmons Oil Corp. v. Wells Fargo Bank, 1998 MT 129, ¶
19, 289 Mont. 119, ¶ 19, 960 P.2d 291, ¶ 19. The authority to grant or deny a
motion in limine being part of the inherent power of a court to admit or exclude
evidence as necessary to afford a fair trial, we will not overturn a district court's
grant of a motion in limine absent an abuse of discretion. City of Helena v. Lewis
(1993), 260 Mont. 421, 425-26, 860 P.2d 698, 700.
3. ¶As a general rule, all relevant evidence is admissible. Rule 402, M.R.Evid.
Relevant evidence is defined as "evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Rule 401, M.R.
Evid. However, relevant evidence "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury . . . ." Rule 403, M.R.Evid. A frequent application of Rule
403, M.R.Evid., commonly referred to as the "remoteness rule," is the exclusion of
evidence which, though otherwise relevant, is too remote in time or space from the
proposition being proved to be admissible without the dangers of unfairness,
confusion, and undue expenditure of time on collateral issues. See Jack B.
Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 401.04(2)(e)(ii),
at 401-29 (Joseph M. McLaughlin ed., 2d ed. 1999); see also Preston v. McDonnell
(1983), 203 Mont. 64, 67, 659 P.2d 276, 277.
4. ¶Kissock contends that the District Court abused its discretion in granting BCC's
motion in limine to exclude evidence of O'Boyle's prior slip and fall accident.
Kissock maintains that O'Boyle's accident, having occurred under substantially
similar conditions only four days prior to Kissock's accident, is relevant and
admissible to demonstrate BCC's notice and knowledge of the dangerously icy

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conditions that existed at the time of Kissock's fall. In opposition, BCC argues that
Kissock failed to show that the two accidents occurred under substantially similar
circumstances or that the instrument which caused Kissock's injury was in
substantially the same condition as when O'Boyle's accident occurred. Since
Kissock failed to establish the factual identity of the two accidents, BCC asserts that
the District Court acted well within its discretion in excluding the irrelevant and
prejudicial evidence of O'Boyle's prior accident.
5. ¶The source of BCC's contention is our discussion in Runkle v. Burlington Northern
(1980), 188 Mont. 286, 613 P.2d 982, in which we said of the remoteness rule as it
pertains to evidence of prior accidents:

"One of the principal qualifications of the rule rendering evidence of prior accidents
admissible for certain purposes is that it must appear, or at least the preliminary proof
must tend to show, that the former accidents happened under circumstances substantially
the same or similar to those existing at the time of the injury for which suit is brought, and
that the instrument or agency which caused the injury was in substantially the same
condition at the time such other accidents occurred as it was at the time of the accident in
question."

Runkle, 188 Mont. at 292, 613 P.2d at 986 -87 (quoting 29 Am.Jur. 2d Evidence § 305, at
351).

1. ¶Because Kissock failed to show that the two accidents occurred "even near to the
same time of day," the District Court found O'Boyle's prior accident to be dissimilar
to Kissock's fall primarily on temporal grounds and, thus, excluded the evidence as
unduly prejudicial. While we continue to acknowledge that district courts have wide-
ranging discretion to balance probative value against prejudicial effect in
determining questions of admissibility, we conclude, as explained below, that the
District Court abused its discretion in finding that the two accidents were not
substantially similar.

1. ¶Evidence of prior accidents, although inadmissible to prove negligence, may be
admitted for other purposes such as to show (1) the existence of a particular physical
condition or defect, (2) the dangerousness of the condition or defect, (3) the
possibility that the condition or defect might cause an accident or injury of the type
alleged, (4) cause in fact, and (5) knowledge or notice of the condition or defect. See
Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence: Doctrine and

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Practice § 4.8, at 281-82 (1995); McCormick on Evidence § 200, at 844-47 (John
William Strong ed., 4th ed. 1992). In Montana, we have recognized that although
evidence of prior accidents is not admissible for the purpose of proving negligence,
such evidence is nevertheless admissible to show the existence of a danger or defect
and notice or knowledge thereof. Runkle, 188 Mont. at 292, 613 P.2d at 986;
Schmidt v. Washington Contractors Group, Inc., 1998 MT 194, ¶ 25, 290 Mont.
276, ¶ 25, 964 P.2d 34, ¶ 25.
2. ¶To guard against prejudice, this Court has required that the prior accident be
"substantially similar to" and "not too remote from the accident in question" in order
to be relevant and admissible. Runkle, 188 Mont. at 292, 613 P.2d at 986 (citing 70
A.L.R.2d 167, 201). Evidence of prior, similar accidents can have significant
probative force bearing upon the question of the reasonableness of defendant's
conduct. Conversely, the rationale for excluding evidence of prior accidents that
happened under dissimilar or remote circumstances is a matter of logic: as time and
circumstances become less similar to the accident under consideration, the probative
value of the occurrence of such prior accidents decreases, while the prejudicial value
of such evidence before a jury increases.
3. ¶However, as we have recognized, "[a]ccidents need not be identical to be
admissible." Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 9, 713 P.2d 527, 532;
see also Runkle, 188 Mont. at 292, 613 P.2d at 986 ("absolute identity of
circumstances is not necessary"). Regarding the degree of identity required when
offering the prior accident evidence for the sole purpose of notice or knowledge, as
did Kissock, we take this opportunity to clarify that the general requirement of
substantially similar circumstances as a precedent to the admission of prior
accidents is "relaxed" or "less strict" when the evidence is proffered to show notice
rather than dangerousness or causation. See Joy v. Bell Helicopter Textron, Inc. (D.
C. Cir. 1993), 999 F.2d 549, 555; Four Corners Helicopters, Inc. v. Turbomeca
(10th Cir. 1992), 979 F.2d 1434, 1440; Pau v. Yosemite Park and Curry Co. (9th
Cir. 1991), 928 F.2d 880, 889; Nachtsheim v. Beech Aircraft Corp. (7th Cir. 1988),
847 F.2d 1261, 1268 n.9; Edwards v. Consolidated Rail Corp. (D.D.C. 1983), 567 F.
Supp. 1087, 1105; Wolf v. Procter & Gamble Co. (D.N.J. 1982), 555 F.Supp. 613,
621.
4. ¶"If the accident is offered to prove notice, a lack of exact similarity of conditions
will not preclude admission provided the accident was of a kind which should have
served to warn the defendant." Weinstein & Berger, Weinstein's Federal Evidence §
401.08(2), at 401-51; see also McCormick on Evidence § 200, at 848 (noting that
the similarity in circumstances may be "considerably less" when offering the

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evidence to show notice of a potentially dangerous situation than when the evidence
is offered for one of the other valid purposes). In proving notice, there may be
dissimilarities between the accidents so long as "the differences can easily be
brought out on cross-examination and understood by the jury. Such differences are
said to affect the 'weight' of the evidence but not necessarily its admissibility."
Mueller & Kirkpatrick, Modern Evidence § 4.8, at 283 (footnote omitted); accord
Jones & Laughlin Steel Corp. v. Matherne (5th Cir. 1965), 348 F.2d 394, 400-01.
5. ¶With the foregoing principles in mind, we turn to the facts of this case. The
temporal and physical circumstances surrounding the two accidents were
substantially similar. We disagree with the District Court's temporal conclusion that
since the accidents happened at different times of the day, they are dissimilar. At
least one court has held, and we agree in this instance, that the fact that the similar
accident occurs at a different time of the day goes to the weight, not the
admissibility, of the evidence. See Bailey v. Southern Pac. Transp. Co. (5th Cir.
1980), 613 F.2d 1385, 1389, cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d
42 (1980).
6. ¶As to physical circumstances, we similarly disagree with BCC that the accidents
occurred under substantially dissimilar circumstances because O'Boyle's 11:00 a.m.
accident occurred one day after a two-week series of snowstorms and freezing
temperatures, while Kissock's 4:30 p.m. accident occurred after a week of warm
temperatures with conditions melting in the day and freezing at night. These minor
factual distinguishments bear upon the weight of the evidence rather than its
admissibility. Importantly, both slip and fall accidents occurred under winter-like
conditions near the front entrance to the BCC facility. O'Boyle's fall was the kind of
accident that should have served to warn BCC of the potentially dangerous
conditions on its premises. Therefore, the parties should be free to argue the subtle,
climatological differences between the two accidents in terms of the weight to be
given the prior accident evidence, and let the jury decide whether O'Boyle's accident
put BCC on notice of the slippery conditions existing on its premises and whether
BCC thereafter exercised ordinary care in maintaining its parking lot. These
differences can be easily brought out by BCC through testimony and cross-
examination, and clearly understood by the jury.
7. ¶Likewise, the instrument that caused the injuries was substantially similar. Both
accidents occurred on BCC premises just days apart. The fact that O'Boyle fell on
the sidewalk, while Kissock fell in the parking lot, does not raise a substantial
dissimilarity. Both the sidewalk and the parking lot are in the walking areas leading
into the BCC facility, where BCC should expect visitors to travel. Nor do we agree

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with BCC that the fact that O'Boyle fell on a snowpacked sidewalk, while Kissock
fell on black ice in the parking lot, renders the instrument causing the injuries
"completely different." Just prior to her accident, O'Boyle stated that a co-worker
walking in front of her along the sidewalk warned her to " 'be careful on the ice.' "
O'Boyle further stated that the condition of the sidewalk was "snowpacked [with]
ice under it." After the accident, O'Boyle told BCC's head maintenance man, " 'I just
fell on that ice out there that we've been telling you guys to clear.' "
8. ¶We determine that the minor spatial and temporal differences existing between the
two slip and fall accidents goes to the weight of the evidence in supporting an
inference that BCC had notice or knowledge of the icy conditions existing at the
time of Kissock's accident. Evidence of O'Boyle's prior slip and fall accident should
have been admitted for consideration by the jury for the purpose of determining
whether a reasonably prudent defendant in BCC's position, having notice of prior
accidents, " 'would have taken precautions against future accidents.' " Kalanick v.
Burlington Northern R.R. Co. (1990), 242 Mont. 45, 52, 788 P.2d 901, 906 (quoting
Young v. Illinois Cent. Gulf R.R. Co. (5th Cir. 1980), 618 F.2d 332, 339).
9. ¶We cannot say that the circumstances surrounding O'Boyle's prior accident are so
remote or dissimilar from Kissock's accident that the probative value of the evidence
is substantially outweighed by its unfair prejudice to BCC. Rule 403, M.R.Evid. In
this regard, we note that BCC presented evidence to the jury showing that, in the
days preceding Kissock's accident, it inspected the parking lot on a daily basis and
heavily sanded the area on several occasions. Based on the evidence, BCC is in a
position to argue that the evidence of O'Boyle's prior accident goes to show that it
did, in fact, exercise ordinary caution and take reasonable precautions against the
type of injury that Kissock suffered. Thus, we agree with Kissock that the jury
should have been allowed to consider O'Boyle's prior accident in determining
whether or not BCC exercised ordinary care in maintaining its parking lot.
10. ¶We hold that the District Court abused its discretion in excluding evidence of
O'Boyle's prior slip and fall accident. Hence, we remand for a new trial.
11. ¶Reversed.

/S/ WILLIAM E. HUNT, SR.

We Concur:

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/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

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